Chapters
Shownotes Transcript
Hello and welcome to another episode of Prosecuting Donald Trump. Well, you've heard a lot about the Trump town hall on CNN and the controversy about whether it should have happened and the format and a lot of political analysis. But we wanted to talk a bit about
its relevance as a prosecutor and how Fannie Willis or Jack Smith would be receiving that information based on our experience in similar situations where we were investigating and or prosecuting public figures who either smartly or inadvisedly make public statements. And then we're going to talk
about something very dear to our hearts, which is the timeline, the clock, what to expect going forward. And I know I've gotten a ton of questions from friends, family, colleagues about that issue. And
I'm here with Mary McCord, who has told me she has gotten the exact same thing. So we thought this would be a great topic. So hi, Mary. Hi, Andrew. And you're absolutely right. Seems like wherever I go, that's the question. Is there time to prosecute Donald Trump before the 2024 election? Okay, well, let's get started then with our first topic, and then we'll turn to our clock to get that moving. So let's start with...
Donald Trump's public statements last week and how, as a prosecutor, you might want to use those. And before, Mary, I turn it over to you, I'm going to just tell a little war story because, as you know, as former prosecutors, it's endless war stories. That's right. But this is, oh my God, it's so many years ago. This is about Enron. And that was a case that was very,
very much in the news. It was like the front page for a long time. And almost everybody, and this stressed the word almost, everybody within Enron stayed quiet as a church mouse. And they all had very good lawyers, and they were very quiet, and they sort of waited to see what was going to happen and what shoes were going to drop. That's totally the right thing to do.
at least legally, if you weren't looking at the political situation. Well, I say almost everybody because the one person who spoke was Jeff Skilling, who was filled with hubris. And he had been the CEO of Enron and had done it for less than a year before he resigned in August,
just before the October collapse. And there was a whole issue about what did he know? Did he see this coming? Because what CEO leaves in less than a year out of his dream job? And did he leave and then sell his stock because he knew about what was happening internally at Enron? And of course, by the way, when he resigned, he said he wanted to spend more time with his family. So he actually testifies under oath
in Congress and he's asked about why did you sell your Enron stock on September 13th? If you remember, that year was 9/11. The attack
in Washington, the plane crash in Pennsylvania, and famously the takedown of the World Trade Center, which I can see the Freedom Tower from my window right now. He was asked about why did you sell your stock on September 13th? And he said it had nothing to do with what I knew about Enron. It was because of 9-11 that I
thought that the market would be very volatile, and so I needed to sell my stock. The problem for him is that the tape-recorded order for the sale of the stock happened on the Friday before 9-11. Oh, great. As an agent I worked with, an FBI agent said, we either have him dead to rights on this crime, or he was involved in the 9-11 attack.
because he knew in advance. But that was a classic example of just enormous hubris. Lines, lines. Yeah, that's right. So anyway, long, long story. Mary, what did you make as somebody who's also been for many, many, many years of federal prosecutor? What did you make of Trump's statements and how they might be used by Jack or by Fannie Willis?
Yeah. Well, first of all, talk about a classic example of lying. I mean, it was just lie after lie after lie after lie. Some that are just indisputable lies and pretty just...
jaw-dropping, really, to watch. I mean, we know that Donald Trump is a serial liar. Lies have been documented throughout all of his presidency and before it and since it. But still, I think it was remarkable to me. And I don't want to actually give a whole lot of air to most of those lies. But some, I think, are things that prosecutors are going to be taking note of because it's
in the rules of evidence, a prosecutor can introduce into evidence an admission made by the defendant, an admission against interest, as long as there's some sort of indications that it wasn't done under duress or involuntarily or anything else. And if anyone watched that town hall or even just saw excerpts of it, you know that he was not doing that under duress. In fact, if anything, the
The people listening were like me were under duress. Yes. And certainly Caitlin Collins trying to like do an actual, you know, civilized discussion with him. I think she was under duress. But at any rate, there's certainly none of those indications. And so that means things that he said that could incriminate him could be used.
false exculpatories could be used, things that make him look like he's trying to make an excuse, but which can be rebutted very easily by other evidence. And I think maybe most significant to me were his comments about, although there were a lot of significant comments, his comments about just taking the documents that were later found at Mar-a-Lago. And the reason that was so significant is
is not just because, because he's said before that he had the power to declassify them. And of course he could take them. He's also said before that they were planted, but his attorneys recently actually sent in a letter saying, not to the prosecutors, but a letter to Congress, putting on record essentially that this was all a big mistake, that it was not Trump who took these documents or even made any decisions about these documents. These were things that in the helter skelter of packing up
the White House, they were inadvertently put in boxes. Well, Trump pretty much admitted that wasn't the case. He said, I took what I took.
I could do with it what I want. And if I showed it to anybody, and I don't know if I did or not, I could absolutely do that. So that's something prosecutors can use. And he's sort of stuck with that. Yeah. So I had the same reaction. I was thinking, you know, one of the things that you and I have done at trials is if you have a litany of lies, you have a chart in summation, like pointing them all out. If you, as you said, you have false exculpatories, different, um,
examples of different excuses. And, you know, it's what we, when Mar-a-Lago first happened, we talked about the defense du jour. All of that gets to be on a chart saying, hey, if there's, the facts are the facts. There's no many facts. It's like there's one story. You know what isn't one story? When you're lying. And here are all the repeated lies and the repeated stories.
So that gets to be put up and used very, very effectively. But I had the same reaction about his stressing that he could take these and there was no problem with him taking them. And that's because this case, up until he said that, was very much in my mind about the illegal retention of the documents at Mar-a-Lago, meaning that he was asked for them when they were at Mar-a-Lago, and it was about his conduct
at Mar-a-Lago, whether he unlawfully retained them, whether he obstructed justice. It was much cloudier, at least publicly, what he did in terms of taking the documents from the White House. And his statements definitely focused on that prog, which is a separate way in which you can be criminally liable, is unlawfully taking them. And I think there's also an interesting venue point because
the illegal retention is happening
at Mar-a-Lago in Florida. And under the Constitution, you're supposed to bring a case within the district where the crime happened. Now, a lot of times crimes happen in more than one district. So there is that ability to bring it in many locations. But the sort of locus is Florida. If you're talking about illegal taking, that happens at the White House. That's in Washington, D.C. Well, if you're Donald Trump,
Ask yourself, where would he? He obviously doesn't want to be indicted at all. But if he's got to be indicted, would you rather be indicted in Washington, D.C. or in Florida? I can tell you what I was doing, the Mueller investigation. I mean, just like Watergate, every single defendant is trying to get out of Washington, D.C. And they're pretty bold about it. They say, we want a jury with more Republicans. I mean, it's not very, it's not, there's no shame in terms of, they're just like. Not veiled. Yes.
Not veiled, much less thinly veiled. Yeah, so anything he does to sort of create, you know, venue and a crime in D.C. has...
this door opening quality. Obviously, we don't know everything that Jack Smith has on the Mar-a-Lago case. There might be a lot more that has it happen in Washington. But I thought that that was sort of an interesting aspect to it. As you know, we've had a few of these discussions. I think there's a good reason for venue in D.C., even if even if that's just because you're a D.C. prosecutor and you want it in your hometown. But actually, having said that, you know what? You're totally right, Mary, because when I was in EDNY, Eastern District of New York,
prosecutor and famously, EDNY and SDNY had this sort of friendly rivalry, sometimes not so friendly. But the one thing we knew really well because of that is we knew our venue rules. That's right. So I totally trust you as a DC, for a DC prosecutor, you know your venue. The archives are in DC. The archives are in DC. And that's who's on the other piece of this. So Mary, I wanted to ask you about something that also relates to what Trump said at the town hall, which is
He proceeded to, right after he was found liable for sexual assault and defamation, as we talked about, unanimously and wantonly, and told that he has to pay $5,000.
a million dollars. That's five million reasons why he should have actually, if you didn't do it, testify. Right after that, he talks about E. Jean Carroll at the town hall and said, what did you make of that? And what implications do you see for E. Jean Carroll and her attorney?
Yeah, again, remarkable. What, maybe 30 hours or so after the verdict had come in, he was out there repeating the very same kind of statements that he was just found responsible for making in defamation of E. Jean Carroll. And those are statements like,
I don't know this woman. I have no idea who she is. She's a wacko, etc. These are the same quality and actually almost verbatim, in some cases, the same statements that, again, a jury said were defamatory against E. Jean Carroll. So talk about just absolutely thinking you're above the rule of law, absolutely discounting this jury's verdict, and really
Just, I think, poking her to sue him again. I mean, here he is again, barely 24 hours after the verdict, and he's making the same defamatory comments. And the other thing I might add, not, you know, totally separate and apart from how crazy that is to do so at any point, but certainly so soon after the verdict.
His own statements were also just sort of showed internally how much they are lies because he says, I don't know this woman. I've never met her. I have no idea who she is.
I know her husband. He names her husband by name. Really nice guy. Well, how can you have no idea who she is yet name her husband and say he's a really nice guy? Like just internally, it's obvious these are lies. Yeah. Leave aside that he's in a photo with all of them. Exactly. Yes. And he says that too. I was in a photo once with her and her husband and it's like, well, then you clearly do have an idea who she is. So,
I think the real question here is, notwithstanding the things we talked about last week, about sort of, you know, the trauma and the pressure and the reasons not for her even to continue to prosecute her other civil case that has been pending out there. You know, some of that falls by the by when she has to have sat there and listened to that and thought, I can't believe this man is doing this to me again. And obviously, her attorney said they'll be looking into it.
to potentially prosecute. More of prosecuting Donald Trump and incriminating Town Hall in just a moment.
And now, all MSNBC original podcasts are available ad-free and with bonus content, including How to Win 2024, Prosecuting Donald Trump, Why Is This Happening, and more. Subscribe to MSNBC Premium on Apple Podcasts.
Let's turn to a topic that you and I have talked about a lot and that privately and that I know we just keep on getting asked about, which is the clock. And I'm going to take a little stab at this, which is I'm going to pat myself on the back a little bit and say, I have just been
from day one saying, folks, keep your eye on the clock. I've tweeted about it. It's just always been so important to me that people focus on the clock. And what I mean by that is we have one real estate case, we have one potential state case, and we have these two potential federal cases. The two potential federal cases are
if there is a Republican president, and certainly if the Republican president is Donald Trump, if we have that, then
Any federal case can be ended by the Republican president. And by the way, I am confident every Republican nominee is going to be asked whether you would end those and whether you would pardon him. And I think they are all going to have to say yes. I just don't see that as something that's really too much of a choice, at least to get through the primary. And so the federal cases, no matter how strong and how good they are, are...
potentially the plug can be pulled and they're over. And that's true whether the case is indicted, whether the case has gone to trial, whether there's a conviction, whether there's a sentencing, whether it's on appeal,
The Department of Justice can just end those cases and let alone a president could pardon the former president, Donald Trump. Can I interject with two caveats to that? Yeah. Even when the government moves to dismiss. Right. Remember, it's they have to get the permission of the court.
And so it's close to unilateral because the court normally grants that motion to dismiss. So, for example, if the case is mid-trial, the Justice Department can come in and say we move to dismiss, even if it's post-trial pending sentencing. And this is what happened with Michael Flynn when Bill Barr- Tell me about it. Right. When the Attorney General Bill Barr decided after guilty pleas that
that they wanted to dismiss this case. He didn't think it was a righteous case. But it's a little different. We're going to do mutual interruptions. It's a little different than Michael Flynn, because with Michael Flynn, the ground was something that was actually not the law and not DOJ policy. So it wasn't just sort of, I just don't think that's an appropriate case to bring anymore. And so
You could imagine the grounds being stronger, saying we just don't think it's... You could imagine, let's say, the president's not Donald Trump, but Asa Hutchinson or somebody, Nikki Haley, just saying, you know what, I don't think it's a good precedent. I think we should follow the Gerald Ford model of pardoning. That makes it a harder call personally.
the federal pardon power would not apply to state cases. Now, with respect to the Alvin Bragg case, that is likely to go to trial, at least according to Bragg is trying to get a trial in the beginning of next year. That might be a little optimistic, but even it could be the spring of next year. And
And the problem there is that for people who are thinking there should be jail time, I don't think that that's likely in an e-felony case, even if the felonies withstand legal scrutiny, and even if there's a conviction. And there can be appeal issues, and it could take a long time for there to be a sentencing, to be an appellate issue. And I just don't see for a first
time offense in the sense that there are no other criminal convictions. Whether you think he should have been prosecuted or has done crimes, he has not actually been prosecuted and convicted, so he is a first-time offender under the law. So he's unlikely to go to jail in Manhattan, which then leaves Fannie Willis. And there, again, what's strong about that if you're looking for accountability is that a federal pardon can't affect her case.
But one, that case has not been brought yet. And there are lots of potential legal issues there. There's a lot of legal motions that can be made. There's a whole question, of course, of when there would be a trial, when there would be a conviction, if at all, and then appeals. So all of that can take quite some time.
And there obviously is the former president, if he becomes the future president, or if there's a Republican president, there are just more levers in terms of power. I mean, something we dealt with in the Mueller investigation. And even though it doesn't have a strict legal effect on the state case, it does make it harder in terms of how to bring that. Plus, there's a whole issue in the state case about whether it could be removed to federal court.
which is a complicated issue. And it's different than in the Bragg situation where Donald Trump is trying to remove it. But I think there's not a snowball's chance in hell that that's going to stay in federal court. It's going to go back to state court. But the Fannie Willis case, I think there really is a
It's a little different, yeah. It's really different in terms of the allegations are more about what he did while he was president. Hence, the statute allows that to go to federal court. So things could be slower depending on who the judge is and how they want to proceed and how that judge will feel about scheduling a trial in the middle of a presidential election campaign. So there's just a lot of issues about even getting to court. So Mary, I've been talking a
a lot too much. What do you think? Well, I think so to just switch us back to the Jack Smith investigations, the federal investigations here, we are about a year and a half out of the election.
We still don't have any indictments. We know just by department policy that he's not going to want to make a charging decision too close to an election. But frankly, if that's how late it is, when it's starting to get close to department policy, then it's way too late to get through a trial. And that's like 60, 90 days. Yes. Right. And again, it's not an actual rule. It's not a statute, but it's it's internal policy.
So really, we're talking about needing to get an indictment done in time to then get to trial, get through a verdict. If there's a conviction, get through sentencing. And even still, as you indicated, even post-sentencing with some constraints, Justice Department could come in and try to, if a Republican wins in 2024, and try to dismiss that whole case or, of course, issue a pardon. Now, I think
We'll footnote whether Trump could pardon himself because I think that's a very debatable and unanswered question. We'll just put that aside for another day. So one of the things I mention to people when I talk about this is that I think people all just assume, well, Trump will do what Trump does. Let's just assume he's indicted and assume he's indicted by the end of the summer. Okay.
Okay. People just assume that he will drag feet and, you know, make tons of motions and try to take interlocutory appeals and do everything possible to run out the clock because that's his MO. For everyone who's not an appellate lawyer, what's an interlocutory appeal, Mary? To take an appeal of some decision that a judge would make, you know, during the pendency of the case, take that up to the court of appeals to delay things even further. Now,
It's very limited what issues you can take an interlocutory appeal on, because the law generally assumes that even for criminal defendants, that you can, after a trial or after a conviction, even if it's by guilty verdict, you can take any issues you had. If you've properly preserved them, you can take any issues you had up on appeal at the time. But there are certain things you can take an interlocutory appeal on.
on, but those slow down everything, right? They muck up the works. Because the appellate courts are basically, we want to hear you once and we're going to hear you at the end of the case after there's a trial and you can present all issues and all trial issues and we'll just hear it all at once. But there's narrow exceptions where they say, you know what, there's certain key issues we'll allow you to take up and have us rule on
That's right. And the rationale is they don't want to do it piecemeal, right? It makes sense. But I think a lot of people tend to think that this is what Trump will do, and I agree that he'll try to do this. But the speedy trial right under the Constitution, there's a constitutional speedy trial right under the Sixth Amendment, and then there's also a statutory speedy trial right, and we can talk about both of these.
The Supreme Court has said pretty famously in a case that is still good law that there is a societal interest, and I'm quoting here, "...a societal interest in providing a speedy trial which exists separate from, at times in opposition to, the interests of the accused."
And they specifically, in that case, it's called Barker v. Wingo, they specifically talk about not enabling a defendant to manipulate the system. So people tend to think of it solely being the prerogative of the accused, right?
to want to exercise his right to a free trial and discount the government or the public's interest. But the Supreme Court has rejected that, said there is a public interest here. And so if I were the government, I would do a couple of things. If I were Jack Smith, at the time I indicted, I would have a package together.
I would have the transcripts of the grand jury testimony of every witness I intend to rely on. I would have the documentary evidence, every single piece of documentary or digital evidence I intend to rely on. And I would hand it over on a silver platter to the defense counsel. And I would say to the judge, we've just given them everything. We want a trial date in 70 days or 90 days. Absolutely. But when I was at the fraud section where we were doing huge document cases,
Our standard procedure was when we showed up at the first court appearance, we turned over everything, like all discovery. And I remember the judges would just be so shocked and we'd be like, judge, it's all been turned over. And why do you do that? Precisely for the reason you said, which is if you want a, a
a trial date that's soon or sooner than the defense is asking for, they're going to be like, well, where's my defense is going to be? Where's my discovery? And the answer to that is we've given it all to you. So you got to do that. That's one of the reasons we've been a little critical of Alvin Bragg not giving a bill of particulars in his case, because if you want a speedy case, you need to turn everything over. So totally agree with you. But I, okay. Once again, I interrupted you. You said you had two things. Yeah.
The other thing I'd say is that, you know, just to talk separately about Speedy Trial Act, right? In addition to the constitutional right, there is a Speedy Trial Act. And the reason I said 70 days there is because under the Speedy Trial Act, you are supposed to go to trial within 70 days of an indictment. Now, there are all kinds of exceptions to that, including the filing of motions by the defendants and other things.
But again, the more that the prosecutor is able to turn over and now he will move to dismiss the indictment if he's charged. And that will be a motion that tolls the speedy trial. But in terms of discovery and those things we were just talking about, you can really obviate the need for an extended amount of time by turning it over. Not to mention this isn't an investigation that's been done in secret in this. I mean, it's been publicly known. The attorney general has
appointed a special counsel to do it. Both Mar-a-Lago and the January 6th have been publicly known for some time. There's no reason Trump and his lawyers couldn't already be preparing for that. The other point I was going to make about the Speedy Trial Act, though, there is also the ability there. Sometimes people will say, well, defendant can just waive that. He can say, I just want more time and then
extend it indefinitely. Here again, that's where the constitutional right kicks in and the public has an interest, but also the judge can't just extend it willy-nilly. Even under the Speedy Trial Act, the judge has to actually make findings that the ends of justice require an extension of the Speedy Trial Act. And I say all of this because I think any judge, if Donald Trump is indicted, is
judges are going to understand this clock, the very thing we're talking about right now, Andrew, that there is a clock and that the ends of justice really, I think, mitigate toward. And I think this, no matter who the judge is, I think they were going to say, we understand why this needs to move a pace. We have to give the defendant a fair chance.
trial and a fair chance to litigate things before trial, but we're not going to have the defendant manipulate the system. That's my thinking on how it will be approached by the prosecutor and the judge. What do you think? So I totally agree with that. And I was going to give two data points for the audience. One is when Alvin Bragg had
had the Trump Organization trial, the corporate cases where they were convicted. That took 16 months, one six, to go from indictment to trial. So that's sort of a, at least within the Manhattan District Attorney's Office, that's sort of one rule of thumb. And
Another is cases that are in D.C. I can't believe, Mary, I'm going to give you an example from D.C. because you're going to be like going, excuse me. I think I know the answer to that. But the Manafort case, when that was a fairly complex case.
white collar crime case, that took 11 months to go from indictment to trial. And that's relatively fast, I thought. That's relatively fast. In white collar, that's kind of speedy. But we did exactly what you said, Mary, which is we showed up and turned everything over, open discovery. And obviously, that's just one data point. And so
I think where I see the greatest opportunity for a fast trial, leaving aside Alvin Bragg's case, is if Jack Smith were to indict the Mar-a-Lago case and if it were to be in D.C., that is a relatively straightforward case.
there is a much more circumscribed set of documents. Yes, there is classified information and there will have to be what's called a SIPA hearing. We can get into. That's to be continued. Disclaimer, we're not going to bore you with SIPA yet. But we will later. But if it's indicted, Mary and I will talk all about SIPA, which is a way of doing sort of review of classified information. And it's actually fascinating, but
Not for today. But that case, I think, is the liveliest prospect for actually being able to indict and at least have it go to trial within this sort of timeframe of well in advance of the actual election.
leave aside that, of course, there'd be a conviction and all that sort of stuff. One other thing, though, you know, we've been talking about what a Republican administration could do with respect to pardons, etc. There is, and maybe this is also a topic to get into more in another day, but there is the Fourth Amendment, Section 3, which bars anyone who has engaged in an insurrection or rebellion against the authority of the United States from holding public office.
Okay, now, Mary, that is definitely a topic for another day because that's huge and complicated. It is. I was just going to say there is also a statute, the insurrection statute, the criminal statute, which itself, anyone who incites, sets foot on, assists, or engages in any rebellion or insurrection against the authority of the United States, it criminalizes that.
And one of the penalties, in addition to imprisonment for no more than 10 years, is the person shall be incapable of holding any office under the United States. And you may recall that one of the criminal referrals by the House Select Committee was whether President Trump gave aid or comfort to a rebellion or insurrection under the statute. So
That's another possibility. So that seems to me that we're going to have to talk about SIPA and the topic, the bomb that you just dropped, which is basically how could Trump actually be disqualified from holding office, which is an incredible... I love that. This is our teaser. So stay tuned for more from Mary McCord on that particular issue. So Mary...
Thanks so much once again. This was really fun, really interesting, and a never-ending moving target. Absolutely. Really fun to talk to you. Yep. Thanks, Andrew.
Thanks so much for listening. We'll be back next week with much more. The senior producer for the show is Alicia Conley. Our technical director is Bryson Barnes. Our audio engineer is Bob Mallory. Jan Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.
Search for Prosecuting Donald Trump wherever you get your podcasts and follow or subscribe to the series.
Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.